2015 PLP 294 (SCMR)

QAZI FAEZ ISA, J.

This civil appeal assails the order dated 16th February, 2004 passed by a Division Bench of the Rawalpindi Bench of the Lahore High Court in Intra Court Appeal ("ICA") No.21 of 2004 that had been filed against the order dated 16th January, 2004 passed by a learned Single Judge in Writ Petition No.1846 of 2003 (hereinafter "the petition").

2. That in the petition it was alleged that the appellant had participated in an open auction of plots held by the Capital Development Authority ("CDA") on 18th November 1999 and was declared to be the successful bidder in respect of plot Nos. 17-A and 18, Orchard Farms, Main Murree Road, Islamabad (hereinafter "the plots") and paid an amount of 25% towards the price of the plots, respectively an amount of Rs.4,650,000 for Plot No. 17-A and Rs.5,850,000 for Plot No.18, i.e. a total amount of Rs.10,500,000.

3. The grievance of the appellant in the petition was that the requisite acceptance letter was not issued by CDA (the respondent in the petition) and the following prayer was made therein:-- "In the circumstances, it is, therefore, humbly prayed that the Hon'ble Court may graciously be pleased to direct the respondent to perform its duties in accordance with law and be directed to hand over the vacant and quiet possession of the plots to the petitioner. Any relief which this Hon'ble Court deems fit and proper in the circumstances of the case may graciously be granted to the petitioner along cost of these proceedings."

4. Mr. Anwar Mansoor Khan, the learned counsel for the appellant, contended that the appellant had complied with the 'Terms and Conditions of Auction' and had made requisite payment of 25% towards the said plots and was ready and willing to pay the balance amount upon completion of the requisite formalities, including issuance of acceptance letters. He further stated that CDA had retained 25% of money of the appellant. Learned counsel for CDA stated that CDA could not hand over the said plots to the appellant as third parties were occupying the same who had instituted litigation wherein the court had passed stay orders.

5. That the learned Single Judge decided the petition by directing CDA, "to refund the amount deposited with them ... within a period of one month along the profit at admissible rates commensurate with such rates as given by the Banks." The appellant however was not satisfied with the said order and filed the said ICA which was dismissed; the learned judges concluding, that:-- "We have heard the learned counsel for the appellant and find that the order passed by learned Single Judge in Chamber does not call for interference for the reason that the complete justice has been done in the case. The appellant himself sought refund of the money deposited as is evident from the contents of para 5 of the writ petition. It is also an admitted fact that a writ petition filed by the owners is pending in this Court in which restraining order has been passed. It was emphasized on behalf of the appellant that he is not interested in the refund of the money and his money be kept lying with the C.D.A. We do not find any force in this submission because no land is readily available with the CDA to provide the petitioner. As regards 25% of the auction money, though it was received by the CDA, acceptance of bid was not issued. Allowing the appellant to keep his money with the CDA would tantamount to provide a premium as an investor over the public property which may become a property of considerable value with the passage of time. This will not meet the ends of justice."

6. That the appellant did not attribute mala fides to CDA and in its petition had acknowledged that the plots were in possession of third parties who had filed Writ Petition No. 2588 of 2002 which was pending adjudication in the Rawalpindi Bench of the Hon'ble Lahore High Court, "and a restraining order has been passed therein" (paragraph 6 of the petition).

7. That clauses 17 and 18 of the 'Mode of Payment' (contained in the Terms and Conditions of Auction') required that 25% additional payment towards the price, "shall be paid by the successful bidder within two months from the date of issue of bid-acceptance letter" whereafter the "allotment letter" would be issued and "the balance 50% ... shall be payable in two equal quarterly installments." CDA did not issue the requisite acceptance and allotment letters to the appellant nor did the appellant itself tender the balance 75% of the price to CDA or offer to deposit it in court. On the contrary the appellant had written to CDA wherein it stated that since CDA had, "failed to issue an acceptance letter of the bid it is therefore requested that the amount deposited ... be refunded." Under these circumstances, the order of the learned Single Judge was fair and reasonable and the appellant should not have objected when its own request for refund was granted by the court.

8. That CDA is a statutory organization and has to act in the public interest. If the appellant was permitted to retain his 'rights' in respect of the plots, having paid only 25% of the price, it would give him an undue benefit/advantage at the cost of the public, as the value of money has historically depreciated whilst the value of land has increased. We can also take judicial notice of the fact that the land prices have increased exponentially in Islamabad. CDA had accepted the order that was passed and had remitted the amount paid by the appellant.

9. That the order that was passed by the learned Single Judge, which was maintained in the ICA, had properly addressed the situation and does not call for interference, consequently this appeal is dismissed. However, since in paragraph 7 of the leave granting order it was recorded that the appellant had declined to receive the amount tendered to him by CDA after the ICA was dismissed, therefore, if the said amount has not been paid to the appellant it shall be paid to him by CDA. MWA/M-57/SC Appeal dismissed.